A Bully’s Bill of Rights

By Eric Siddall

Bullying, sexual assaults, and gun violence are recognized problems in our schools. Not according to Assemblywoman Shirley Weber who introduced AB 163. This latest piece of legislation, initially proposed by the ACLU in a 2016 report, seeks to protect suspects of these crimes and prohibit police from investigating or arresting the perpetrators of these crimes.

AB 163 prohibits law enforcement officers from arresting students for “low-level misconduct” and require that school counselor and not police handle crimes such as bullying, harassment, and other “nonviolent incidents.” The ability of officers to interview any student on campus during school hours, be they suspect or victim, would be prohibited “absent a real and immediate physical threat to pupils, teachers, or public safety.” A peace officer seeking to interview a student-suspect or victim during school hours could only do so after getting the consent of the school principal and a parent and providing Miranda warnings before questioning. If the officer wanted to arrest a student on campus, they would have to notify a parent before the arrest, provide the principal reason for both the arrest and need to make the arrest at school, and possess an arrest warrant.

The restrictions above are clearly intended to severely hamper the ability of law enforcement to conduct any law enforcement activities on school grounds. This restrictions are not based upon the US or California constitutions, because they go way beyond the protections afford under both the 4th and 5th amendments.

For example, the 4th amendment only requires probable cause for an arrest, not the arrest warrant requirement in AB 163. Likewise, the 5th Amendment only requires a recitation of Miranda rights when there is a custodial interrogation, not during a consensual interview or during a detention.

Therefore, notwithstanding the restrictions made by AB 163, violations of this law would still subject the individuals to criminal prosecution.

This is not the first time we have had concerns about Assemblymember Weber’s legislation – see our blog entitled Shirley You Jest – Stanford Sexual Assault. There are other troubling sections of the bill demonstrating a lack of understanding of the criminal justice system, and frankly, a lack of common sense. For example, the bill treats all students, be they victim or suspect, alike. Thus, if Jane Doe tells a teacher (a mandatory reporter) of a sexual assault, beating, or other crime committed against her the previous week by her parents, when police are called the officer would be prohibited from interviewing the student at the school absent parent consent. Similarly, if there were a rash of thefts at school with students as victims, a not uncommon occurrence, school staff would be prohibited from calling a police officer to investigate that crime. Should a student or parent independently report the theft, officers would be prohibited from responding to school-where all the victims were located and interviewing the victims unless the time-consuming process of contacting a parent of each student victim was contacted and consented to the interview.

A similar lack of common sense is the prohibition of an arrest on school grounds unless a warrant is obtained and a parent notified. It is not uncommon for officers to be unable to locate juvenile suspects in the community, but instead find them at school. Thus, if Johnny Juvenile rapes an acquaintance the week prior and his parents hide him from police, upon learning Johnny was at school officers would have to first go through the time-consuming process of getting an arrest warrant and then notify Johnny’s parents prior to trying to arrest Johnny.

What is equally disturbing is the vague language replete in AB 163. The bill states police can only be called when there is a “real and immediate physical threat to pupils, teachers, or public or when required by existing law.” What constitutes a “real and immediate physical threat” is a phrase that would give hours of delight to those also interested in knowing how many angels can dance on the tip of a needle.

Similarly, AB 163 prohibits arrests for “low-level misconduct,” a term not found in the Penal Code. However, what are some of the crimes the drafters of AB 163-the ACLU-consider “low-level misconduct?” From their 2016 report, here are a choice few: battery against school staff; battery on school property; physical altercations that do not involve a weapon; verbal harassment; possession of a small pen knife; pepper spray or toy gun unless being brandished as a weapon; and vandalism.

Putting aside the notion that beating a teacher or another student is simply is “low-level misconduct,” the Penal Code is in disagreement as well. Possession of a penknife that has a blade longer than 2 ½ inches, anda “toy gun” capable of discharging a metallic pellet at a school is a felony, whether the item was brandished or not. Likewise, it is a felony for a minor under 16 to possess pepper spray, and vandalism causing damage over $400 is also a felony.

As mentioned above, this bill is the product of the ACLU report which was a mixture of “facts,” incomplete, anecdotal accounts, and statistical projection. With overwrought language, it decried law enforcement presence on campus as feeding a “school to prison pipeline” and made recommendations that have now become AB 163. A mixture of the “facts” in the report have been questioned. The LAUSD Police Chief called out the report’s inaccuracies when recounting the agencies arrest rate of African American students, searches of students, and police staffing on school campuses. Likewise, an anecdote about a Taser use by a police officer at a San Diego area, high school failed to include the facts that the officer tasered the students only after the three students brutally beat the officer into brief unconsciousness, or that all three students later admitted their guiltto criminal charges stemming from the attack.

AB 163 begins with the incomplete and head scratching rationale in its “findings and declarations” for the Legislature. Using the theory of “disparate impact,” AB 163 cites differences in the arrest and suspension rates for of minority student but ignores the behavior prompting those arrests or suspensions. However, a 2014 study in the Journal of Criminal Justice concluded that “the racial gap in suspensions was completely accounted for by a measure of the prior problem behavior of the student – a finding never before reported in the literature.” The study went on to note that “great liberties was taken in linking racial differences in suspensions to the racial discrimination” and cautioned that “it is entirely possible that the body of evidence and the conclusions drawn from the evidence on racial differences in school suspensions represents not the sum total of rigorous scientific analysis but the process of confirmation bias.

A similar head-scratcher in AB 163 is a “finding” that a law enforcement presence on campus “increases disorder” because it makes students fearful of staff and police. It’s not the thousands of weapons on campus in Los Angeles and across the state recovered each year, the violent brawls at schools, the necessity to provide “safe passage” to get students to school or school bullying and fights aren’t what make students fearful-it’s law enforcement on campus.

With dubious rhetoric and faulty data behind it, a grab bag of requirements that are at odds with settled constitutional law, and the limitations on law enforcement to conduct and investigate criminal activity and make arrests, AB 163 makes our staff and students at our school less safe. A careful dissection of those factors by the state legislature should lead to its defeat.

Eric Siddall is Vice President of the Association of Los Angeles Deputy District Attorneys, the collective bargaining agent representing nearly 1,000 Deputy District Attorneys who work for the County of Los Angeles.